LEAD BASED PAINT IN RESIDENTIAL PROPERTIES
I. Lead Poisoning - Major Sources of Lead
A. Residential Lead-Based Paint (LBP)
- There are 5 or 6 million tons of lead in approximately 64 million U.S. homes.
- 83% of the privately owned housing units in the U.S. built before 1980 contain some lead-based paint. This lead based paint may cause a hazard if not managed properly.
B. Lead Exposure
Ingestion of chips - high exposure
Ingestion of fine dust - lower exposure
II. Sources of Lead Paint
1. Paint At the turn of the century through the 1940's, paint manufacturers used lead as a primary ingredient in many oil-based interior and exterior house paints. This practice continued through the 50's and 60's, as latex paints became more popular. The U.S. Consumer Products Safety Commission banned lead-based paints from residential use in 1978.
2. Water Nature - Pipes (Solder).
3. Air Gasoline Exhaust.
4. Metal Cans, Solder.
5. Ceramic Dinnerware.
6. Lead Crystal (Wine Decanters and Glasses).
7. Pewter
8. Soil
III. Lead Exposure
A. Lead exposure is especially damaging to children, fetuses and women of child bearing age.
B. Since 1978, the Center for Disease Control, (CDC), has lowered blood lead levels of concern in the United States from 60 (micrograms per deciliter) to 10 (micrograms per deciliter) (ug/dl).
C. Sources of Lead Exposure in the Home
a. Lead from exterior house paint can flake off or leach into the soil outside of a home, contaminating play areas.
b. Dust caused during normal lead based paint wear (around windows and doors) create a hard to see film over surfaces.
c. Window sills, doors, floors, radiators, stairways.
d. Cleaning and renovation activities can increase exposure by distributing fine lead dust particles into the air and over accessible household surfaces.
IV. Target Groups
- Children under 6 in residential housing.
- Children due to size and body weight, as well as age, inhale the fine dust or ingest paint dust or paint chips during hand to mouth activities.
V. Lead Poisoning - Definition
- Lead is measured in the blood.
a. Micrograms of lead per deciliter of blood.
A microgram is one millionth of a gram. A gram is 0.0035 ounces.
b. Deciliter - A deciliter is 3.381 US fluid ounces.
- Lead Poisoning is toxic to all organs in small amounts. It is immediately ingested into the system through the bloodstream, and ultimately settles in the large organs and bones.
VI. Effects of Lead Poisoning
a. No obvious symptoms
b. Blood levels as low as 10 ug/dl have been associated with:
(1) learning disabilities; (2) growth impairment; (3) permanent hearing and visual impairment; (4) damage to the brain and nervous system; (5) high blood pressure; (6) headaches (7) digestive problems; (8) memory and concentration problems; (9) sleep disturbances; (10) muscle or joint pain.
In large doses, lead exposure can cause brain damage, convulsions, and even death. Lead exposure before or during pregnancy can alter fetal development and cause miscarriages.
VII. Lead Poisoning - CDC Definitions
a. 9 ug/dl (micrograms per deciliter) - child not considered lead poisoned.
b. 10-19 ug/dl - community intervention (screening education)
c. 20-44 ug/dl - Department of Health inspects dwelling. Department of Health medical evaluations.
d. 45-69 ug/dl - Medical treatment and chelation.
e. 70 ug/dl - Medical emergency.
VIII. Current Concerns
a. Several million US children have > 15 ug/dl;
b. Thousands of fetuses each year are born with 1> 10 ug/dl;
c. Children in all socioeconomic strata are affected;
d. Increased blood lead screening;
e. Lower intervention levels;
f. Press coverage & Public Awareness;
g. Litigation
IX. New York City
Fiscal year 1992: 667 New Cases per year
4,000 cases under management by NYC
Now, NYC DOH estimates:
65,000 a year above 10 ug/dl
6,000 to 10,000 cases a year may be above 20 ug/dl
One out of every eleven (11) children in the United States has elevated blood
lead levels in their bodies.
X. DISCLOSURE OF KNOWN LEAD-BASED PAINT
AND/OR LEAD-BASED PAINT HAZARDS IN HOUSING
A. SELLERS AND LESSORS OF MOST RESIDENTIAL HOUSING BUILT BEFORE 1978, MUST DISCLOSE THE PRESENCE OF KNOWN LEAD-BASED PAINT AND/OR LEAD BASED PAINT HAZARDS IN THE HOUSING.
B. SELLERS AND LESSORS MUST PROVIDE PURCHASERS AND LESSEES
WITH ANY AVAILABLE RECORDS OR REPORTS PERTAINING TO THE PRESENCE OF LEAD-BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS.
C. SELLERS AND LESSORS MUST PROVIDE PURCHASERS AND LESSEES
WITH A FEDERALLY APPROVED LEAD HAZARD INFORMATION PAMPHLET. TITLED "PROTECT YOUR FAMILY FROM LEAD IN YOUR HOME".
D. SELLERS MUST PROVIDE PURCHASERS WITH A 10 DAY OPPORTUNITY TO CONDUCT A RISK ASSESSMENT OR INSPECTION FOR THE PRESENCE OF LEAD BASED PAINT AND/OR LEAD-BASED PAINT HAZARDS BEFORE THE PURCHASER IS OBLIGATED UNDER ANY PURCHASE CONTRACT.
E. SALES AND LEASING CONTRACTS INCLUDE CERTAIN DISCLOSURE AND ACKNOWLEDGMENT LANGUAGE.
F. AGENTS MUST INSURE COMPLIANCE WITH THIS DISCLOSURE
XI. EFFECTIVE DATES FOR DISCLOSURE
A. For owners of more than 4 residential dwelling units, the requirements are applicable on September 6, 1996;
B. For owners of 1-4 residential dwellings, the requirements are applicable on December 6, 1996;
C. Penalties - Civil penalties of up to $ 10,000 per violation;
D. Criminal penalties upon conviction to a fine of $10,000 per violation or to imprisonment for not more than I year, or both.
E. A purchaser or lessee, in a private civil suit, may recover triple the actual damages suffered. In addition, a court may award court costs, reasonable attorneys fees, and expert witness fees to the prevailing plaintiff.
XII. TARGET HOUSING
ANY HOUSING CONSTRUCTED PRIOR TO 1978 EXCEPT HOUSING FOR THE ELDERLY OR PERSONS WITH DISABILITIES (UNLESS ANY CHILD WHO IS LESS THAN 6 YEARS OF AGE RESIDES OR IS EXPECTED TO RESIDE IN SUCH HOUSING), OR ANY ZERO BEDROOM DWELLING.
XIII. EXEMPT TRANSACTIONS
A. Rental housing found to be free of lead-based paint, as determined by a certified inspector. This exemption does not apply to sales.
B. Transaction to sell properties at foreclosure.
C. Short term leases of 100 days or less.
D. Lease renewals. Repeated disclosures are not required during the renewal of the existing leases in which the lessor has previously disclosed all information and where no new information has come into the possession of the lessor.
E. The purchase, sale or servicing of mortgages.
F. The sale or lease of zero bedroom dwellings.
G. Housing for the elderly or persons with disabilities (unless a child who is less than 6 years of age resides or is expected to reside in such housing).
XIV. DEFINITIONS
1. Agent means any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor.
As a consequence, listing agents, selling agents, and buyers agents, (if paid by the seller or through a cooperative brokerage agreement with the listing agent) are agents, and are responsible for insuring compliance.
2. Available. - Means in the seller's or lessor's possession or reasonably obtainable by the seller or lessor at the time of the disclosure. The rule requires that sellers and lessors provide the purchasers and lessees with "any lead hazard evaluation reports available to the seller or lessor".
Examples of reasonably obtainable records include records retained by a separate or outside entity on behalf of the seller or lessor.
The term "reasonably obtainable" is not intended to impose an obligation on the seller or lessor to conduct further evaluation of the housing.
3. Common area means a portion of the building generally accessible to all residents/users, including, but not limited to hallways, stairways, laundry and recreational rooms, playgrounds, community centers and boundary fences.
4. Foreclosure means any of the various methods, statutory or otherwise, known in different jurisdictions, of enforcing payment of a debt, by the taking and selling of real property.
5. Housing for the Elderly means retirement communities or similar types of housing specifically designed for households composed of one or more persons 62 years of age or more at the time of initial occupancy.
6. Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.
7. Lead-based paint free housing means target housing that has been found to be free of paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.
8. Lead-based paint hazard means any condition that causes exposure to lead from
lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate Federal agency.
9. Lessee means any person or entity that enters into an agreement to lease, rent or sublease target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations.
10. Lessor means any person or entity that offers target housing for lease, rent or sublease, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and nonprofit organizations.
11. Owner means any person or entity that has legal title to target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes, and non-profit organizations.
12. Purchaser means any person or entity that enters into an agreement to purchase an interest in target housing, including but not limited to individuals, partnerships, corporations, trusts, government agencies, housing agencies, Indian tribes and non-profit organizations.
13. RISK ASSESSMENT MEANS AN ON-SITE INVESTIGATION TO DETERMINE AND REPORT THE EXISTENCE, NATURE, SEVERITY AND LOCATION OF LEAD-BASED PAINT HAZARDS IN RESIDENTIAL DWELLINGS, INCLUDING:
i. Information gathering regarding the age and history of the housing and
occupation by children under age 6;
ii. visual inspection;
iii. limited wipe sampling or other environmental sampling techniques;
iv. other activity as may be appropriate; and,
v. provision of a report explaining the results of the investigation.
14. Seller means any person or entity that transfers legal title to target housing, in whole or in part, in return for consideration, including but not limited to individuals, partnerships, corporations, et al. THE TERM "SELLER ALSO INCLUDES: (1) AN ENTITY THAT TRANSFERS SHARES IN A COOPERATIVELY OWNED PROJECT IN RETURN FOR CONSIDERATION; and (2) an entity that transfers its interest in a leasehold in jurisdictions or circumstances where it is legally permissible to separate the fee title from the title to the improvement, in return for consideration.
15. Target housing means any housing constructed prior to 1978, except housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) or any 0 bedroom dwelling.
16. 0 bedroom dwelling means any residential dwelling in which the living area is not separated from the sleeping area. Such term includes efficiencies, studio apartments, dormitory housing, military barracks, and rentals of individual rooms in residential dwellings.
XV. FULL DISCLOSURE
(A) Provide the seller or lessor with a lead hazard information pamphlet approved by EPA;
(B) Notice of the presence of known lead-based paint and/or lead-based paint hazards. Sellers and lessors must disclose, based on their actual knowledge, whether the target housing is known to contain lead-based paint and/or lead-based paint hazards. The said knowledge stems from existing facts and information versus constructive knowledge. Federal regulations do differ, however, from state law, which do find civil liability where a building owner had actual or constructive notice that a child under 6 years of age or under was living in a residential unit. (Juarez v. Wavecrest Management, New York Court of Appeals, (88 NY2d 628 1996).
(C) Provision of records and reports on lead-based paint and/or lead-based paint hazards available to the seller or lessor. Available evaluation reports means records and reports that pertain to lead-based paint, and/or lead-based paint hazards in the target housing that are in the possession of the seller or lessor, or that are reasonably obtainable by the seller or lessor at the time of disclosure.
XVI. ESSENTIAL REQUIRED ELEMENTS OF DISCLOSURE ON SALES OF TARGET HOUSING
1. Each contract to sell target housing must include an attachment containing specific disclosure and acknowledgment elements in the language of the contract; e.g., English, Spanish. The elements required are as follows:
(a) The first required element is the Lead Warning Statement. (SEE NOTICE ATTACHED).
(b) A statement disclosing the presence of any known lead-based paint and/or lead-based paint hazards in the target housing, or indicating no knowledge of the presence of lead based paint and/or lead-based paint hazards.
The statement must list all records and reports pertaining to lead-based paint and/or lead-based paint hazards that are available to the seller. If no such records or reports are available to the seller, the statement must so indicate.
(c) A statement affirming that the purchaser has received the information noted above, and the lead-hazard information pamphlet.
(d) A statement affirming that the purchaser has received a 10 day opportunity to conduct a risk assessment or inspection. The purchaser may chose to waive the risk assessment or inspection, but must do so in writing.
(e) A statement by any agent involved in the transaction that the agent has informed the seller of the seller's obligation and that the agent is aware of his/her duty to insure compliance with the requirements of this rule.
(f) Signatures and initialed portions of the Lead Warning Statement by the sellers, agents and purchasers certifying the accuracy of their statements, along with the dates of initialing and signatures.
XVII. LEASING CONTRACTS FOR TARGET HOUSING MUST INCLUDE
AS AN ATTACHMENT, IN THE LANGUAGE OF THE CONTRACT,
E.G., ENGLISH, SPANISH, THE FOLLOWING:
(A) The first required element is a lead warning statement. (SEE STATEMENT ATTACHED).
(B) The second required element is a statement disclosing the presence of any known lead-based paint and/or lead-based paint hazards in the target housing or indicating no knowledge of the presence of lead-based paint and/or lead-based paint hazards. The lessor shall also provide any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist; the location of the lead-based paint and/or lead-based paint hazards; and the condition of the painted surfaces. The statement must also list any records or reports pertaining to lead-based paint and/or lead-based paint hazards that are available to the lessor and that have been provided to the lessee. If no such records or reports are available to the lessor, the statement must so indicate.
(C) The third required element is a statement affirming that the lessee received the information noted in paragraph (B) above, and the lead hazard information pamphlet.
(D) The fourth required element is a statement by any agent involved in the transaction that the agent has informed the lessor of the lessor's obligations under the law and that the agent is aware of his/her duty to ensure compliance with the requirements of this rule.
(E) The fifth required element is the signatures and initialed portions of the Lead Warning Statement by the lessor(s), agent(s), and lessee(s), certifying the accuracy of their statements, along with the dates of signature. These signatures document the acceptance by the parties of the information they have provided as a whole and alert the various parties to the roles and responsibilities of each party.
XVIII. RECORD KEEPING
The seller and any agent are required to retain a copy of the completed disclosure and acknowledgment contract attachment for three years from the completion date of the sale.
The lessor and any agent are required to retain a copy of the completed lease or attachment required for three years from the commencement of the lease period.
The requirement to disclose the presence of known lead-based paint and/or lead-based paint hazards remains even if the seller or lessor is unable to locate the original reports, quantifying the data.
XIX. FAILURE TO DISCLOSE
(A) The disclosure is required to allow purchaser or lessee an opportunity to conduct a risk assessment or inspection before the purchaser or lessee becomes obligated under any contract to purchase or lease the dwelling.
The failure to disclose does not "affect the validity or enforceability of any sale or contract for the purchase and sale or lease of any interest in residential real property or any loan, loan agreement, mortgage or lien made or arising in connection with a mortgage loan. Nothing in the rule "shall create a defect in title", nor does failure to conduct full disclosure before sale or lease affect the validity of the sales or leasing contract itself. Rather, purchasers seeking a remedy for non-disclosure may avail themselves of the civil remedies afforded under the statute.
CONCLUSIONS
- Anticipate heightened awareness
- Adopt proactive policies
NYC: "Juarez" decision:
- Ignorance not a defense
- Owner has an affirmative duty to test/abate
- Get legal guidance
- Use only qualified contractors & consultants
- Assess lead liabilities
- Lead Based Paint testing v. lead hazard evaluation
- Target resources for "worst case" units
- Determine feasible hazard controls
- Lead Based Paint abatement v. in place management.
Set Operations & Maintenance (O&M) Program
- Written policy for in-place management of lead paint
- Awareness seminars; management, staff, occupants
- Proper supplies, equipment; record keeping, inspections.
LEAD PAINT MANAGEMENT PROGRAM
- coordinated in-house response
- immediate legal & technical evaluation
- hazard validation testing (65% invalidated)
- side-by-side testing of outside parties
- "expert witness" support.
